The state secrets privilege has been invoked by the Bush
Administration with greater frequency than ever before in American
history in a wide range of lawsuits that the government says would
threaten national security if allowed to proceed.

In virtually every case, the use of the privilege leads to dismissal
of the lawsuit and forecloses the opportunity for an injured party
to seek judicial relief.

Most recently, a lawsuit brought by Khaled El-Masri, a German
citizen who alleged that he was kidnapped by the CIA and tortured
over a five month period, was dismissed after the CIA invoked the
"state secrets" privilege.

The dismissal was not based on a finding that the allegations
against the CIA were false.

"It is in no way an adjudication of, or comment on, the merit or
lack of merit of El-Masri's complaint," wrote Judge T.S. Ellis, III
in a May 12 order.

In fact, "It is worth noting that ... if El-Masri's allegations are
true or essentially true, then all fair-minded people... must also
agree that El-Masri has suffered injuries as a result of our
country's mistake and deserves a remedy," he wrote in the order
dismissing the case.

"Yet, it is also clear from the result reached here that the only
sources of that remedy must be the Executive Branch or the
Legislative Branch, not the Judicial Branch," he suggested.

But in this case the executive branch is the alleged perpetrator of
the offense, and the legislative branch has no procedures for
adjudicating allegations such as El-Masri's, even if it had an
interest in doing so. That's what courts are for.

Terrorists can kill people and destroy property. But they cannot
undermine the rule of law, or deny injured parties access to the
courts. Only the U.S. government can do that.

The state secrets privilege has been invoked lately in a remarkable
diversity of lawsuits. See this selection of case files from
recent state secrets cases:

Tom Blanton of the National Security Archive reflected on the
growing use of the state secrets privilege and how it relates to
the larger climate of secrecy in "The lie behind the secrets," Los
Angeles Times, May 21:

When workers at the secret Groom Lake ("Area 51") aircraft test
facility in Nevada filed a lawsuit in the early 1990s alleging that
they had been injured by fumes from open-pit burning of chemical
waste associated with stealth aircraft development, the government
blocked the lawsuit by insisting that all information regarding the
chemical waste was classified.

So it came as a surprise to researcher Stephen I. Schwartz when he
discovered that some of this information had been published online
by the Air Force in a document cleared for public release.

Specifically, a safety manual intended for emergency responders
identifies the "hazardous byproducts of burning wreckage" of an
F-117A stealth fighter.

"It's a textbook case of how the government, in this case the Air
Force, wields classification rules unevenly and withholds
information illegally when its disclosure would prove embarrassing
or costly," said Stephen Schwartz, the former publisher of the
Bulletin of the Atomic Scientists.

Attorney Jonathan Turley, who represented the Groom Lake workers,
told the Review-Journal that as a result of the latest revelations
he is "looking at the possibility of renewed litigation related to
Area 51."

The Department of Defense budget request for 2007 includes about
$30.1 billion in classified or "black" spending, according to a new
analysis by the Center for Strategic and Budgetary Assessments.

"In real (inflation-adjusted) terms the $30.1 billion FY 2007
request includes more classified acquisition funding than any other
defense budget since FY 1988, near the end of the Cold War, when
DoD received $19.7 billion ($29.4 billion in FY 2007 dollars) for
these programs," wrote author Steven Kosiak.

Pressure to adopt "sensitive but unclassified" control markings on
information that does not qualify for classification is growing,
along with opposition to such controls, among some academic
researchers who study terrorism-related topics.

See "Scientific Openness: Should Academics Self-Censor Their
Findings on Terrorism?" by Yudhijit Bhattacharjee, Science, May 19:

"The secrecy that has become such a hallmark of the Bush
administration did not begin with Sept. 11, as the White House
often suggests. It began in the earliest days of January 2001, as
the administration was taking shape," according to a National
Public Radio account.